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Subsequent amendment of legally binding tax assessments

Dear Sir or Madam,

I was in professional training from 2008 to 2011. I have declared my trips in the income tax returns for 2008 to 2010 as trips between home and regular workplace. I do my own tax returns. In 2011, I found out that I could have claimed these training-related trips as education expenses.

I have already contacted the tax office requesting a change to the mentioned income tax assessments according to § 173 AO. I am currently in an objection procedure. The tax office naturally rejects such a retrospective change according to § 173 AO.

Is it possible that the mentioned income tax assessments can still be changed according to § 173 AO? Is there any other way? Did the tax office have the right to accept my declared travel expenses in this way?

For better understanding, I have attached my correspondence with the tax office.

Thank you in advance.

Sincerely,

Frank Wernke

Michael Herrmann

Dear Mr. Wernke,

First of all, thank you for your inquiry, which I am happy to answer based on the information provided and considering your efforts within the scope of an initial consultation. The response is based on the description of the facts. Missing or incorrect information about the actual circumstances can affect the legal outcome.

Unfortunately, I cannot offer you any hope of success regarding the possibility of a change according to § 173 of the Tax Code. The tax office has detailed the legal system of § 173 of the Tax Code related to your objection in the letter dated 12.06.2012, so any explanation here would simply be repeating what was already stated. A change in legal assessment does not constitute a new fact within the meaning of the provision, and substantive legal errors can be corrected only to a very limited extent after the decision has become final.

In particular, the "emergency provision" of obvious error (§ 129 of the Tax Code) is not applicable here, as the error is not a typing or calculation mistake, but a mistake in the application of the law, which also does not involve an error in the tax authorities' assessment. For this provision to apply, the tax office would have to admit that there was no legal evaluation of the specified travel expenses. This is really not to be expected.

As a consolation, you only have § 177 of the Tax Code, correction of substantive errors. According to this provision, in case the relevant decisions are to be changed again to your disadvantage, you can argue that when making the change, the existing contentious errors should be considered in your favor. However, based on the description of the facts, such a change is currently not apparent.

I hope that these explanations within the scope of your efforts and this initial consultation have given you a sufficient overview of the situation, even though you may not be able to derive a satisfactory outcome from it, and I remain

Yours sincerely,

Michael Herrmann
Dipl.-Finanzwirt (FH)
Tax Advisor

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Michael Herrmann

Michael Herrmann

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